5335 Wisconsin Avenue, NW, Suite 440, Washington, D.C. 20015 Tel: 202-895-1506   Fax: 202-318-0798 E-Mail: lgoldsmith@goldsmithfirm.com May Employees of State Governments Sue Their Employers Under the Americans With Disabilities Act? Supreme Court Is Considering the Issue By: Leizer Goldsmith If you are employed by a state government and are experiencing disability discrimination, or if you already have a case in court against a state under the Americans With Disabilities Act, the countdown is on for determining whether you will be allowed to pursue your claims in court. The United States Supreme Court continued its re-examination of many federal health and welfare statutes last week, when it heard oral arguments in the case of Alabama v. Garrett. Just this past January, the Court ruled in a 5-4 decision that the Age Discrimination in Employment Act ("ADEA") could not be applied to the states. The Court also recently struck down the Violence Against Women Act. In the ADEA case, Kimel v. Board of Regents, the Court held that the Fourteenth Amendment to the United States Constitution, which forbids states from making or enforcing any law that deprives persons of life, liberty or property, and which allows Congress to pass legislation to remedy any such violations by the states, did not permit enforcement of the ADEA against the states because there was not sufficient proof before Congress when it passed the law that age discrimination by the states was a severe enough problem. Indeed, the Court ruled, everyone gets old sometime-unless they die prematurely. The Court's ADEA ruling differentiated state discrimination based on race and sex, which, the Court stated, Congress could regulate more freely. The Court did not address the issue of disability discrimination in Kimel, leading to the current case and the key question: is the history of disability discrimination by the states sufficiently severe as to allow Congress to pass a law permitting state employees to sue their employers for disability discrimination? Or, is such discrimination more like age discrimination-a relatively insignificant problem (according to the Court) that the Fourteenth Amendment cannot address? The Alabama ADA case appears to present a stronger argument for permitting suits against the states than the ADEA case did. Indeed, Congress went to great lengths in documenting the problem of disability discrimination that it was addressing when it passed the ADA. At the oral argument, observers noted that Justice Sandra Day O'Connor, who ruled in favor of striking down the ADEA as applied to the states, showed by her questions that she was at least taking the pro-enforcement side's arguments seriously. O'Connor's views are crucial because Kimel was decided by a 5-4 vote. In the ADA area, Congress was very explicit about the need, and its desire, to remedy disability discrimination by the states. If the Court prohibits suits against the states, many state employees with disabilities will be left without sufficient remedies and legal procedures to vindicate their rights. Citizens should be watching the Court closely with regard to this decision.